What Assets Must Go Through Probate in Florida (and What Skips It)

In Florida, an asset must go through probate when it was owned solely in the decedent’s name at death with no surviving co-owner and no valid beneficiary or payable-on-death designation attached to it. Anything that passes automatically by operation of law or by contract — joint accounts with survivorship, life insurance with a named beneficiary, trust property, and the like — skips probate entirely. The dividing line is not the size or type of the asset, but whether title or a designation tells the asset where to go without a judge’s signature.

That single distinction explains most of what families struggle to understand after a loved one dies. I’ve sat across the table from countless adult children who assumed “the will handles everything,” only to learn that the will controls just one bucket of property — and often the smallest one. Below is how Florida actually sorts a person’s assets, why it matters, and where the costly surprises tend to hide.

What “probate” actually decides in Florida

Probate is the court-supervised process of validating a will (if one exists), appointing a personal representative, paying the decedent’s debts and taxes, and distributing what’s left. It’s governed primarily by Chapters 731 through 735 of the Florida Statutes and the Florida Probate Rules. The probate court has authority over probate assets — and only probate assets.

So the threshold question in every estate is simply this: which assets are probate assets, and which aren’t? Get that wrong and you either open a case you didn’t need or, worse, distribute money that was never yours to distribute.

Assets that must go through probate

A probate asset is property the decedent owned individually that has no built-in mechanism for passing to someone else. The most common examples:

• Solely owned real estate — a home, condo, or vacant lot titled in the decedent’s name alone, with no co-owner holding survivorship rights and no enhanced life estate (“Lady Bird”) deed.
• Individual bank and brokerage accounts with no payable-on-death (POD) or transfer-on-death (TOD) beneficiary.
• Vehicles, boats, and other titled property held in one name.
• Tangible personal property — furniture, jewelry, art, collectibles — owned outright.
• Business interests such as a sole proprietorship or an LLC membership interest held individually without a transfer-on-death or operating-agreement succession provision.
• Life insurance or retirement accounts where the named beneficiary is “the estate” — or where every named beneficiary has predeceased and no contingent is listed. This is one of the most common ways an “automatic” asset gets pulled back into probate.

Notice the pattern: each of these lacks a co-owner or a designation. The will, if any, governs how these assets are distributed. If there’s no will, Florida’s intestacy statutes (Sections 732.101–732.111) decide who inherits, in a fixed order that starts with the surviving spouse and descendants.

Florida’s two main probate tracks

Not every probate case is a years-long ordeal. Florida offers two principal forms of administration, and which one applies depends largely on the value and age of the estate:

1. Formal administration (Chapter 733) — the full process, with a court-appointed personal representative who has letters of administration, a creditor period, and formal accountings. This is the default for larger or contested estates.
2. Summary administration (Section 735.201) — available when the probate estate is worth $75,000 or less (excluding the homestead’s exempt value) or when the decedent has been dead for more than two years. It’s faster and skips the appointment of a personal representative.

There’s also disposition without administration under Section 735.301, a narrow option for very small estates where the only assets are exempt property or modest sums consumed by final expenses. New York handles this tiering differently, and for clients with assets in both states it’s worth understanding how each jurisdiction approaches it — Morgan Legal’s overview of the is a useful comparison point.

Assets that skip Florida probate

This is the half of the ledger that surprises people — usually pleasantly. A large share of a typical estate passes outside probate entirely. The categories:

1. Property held with survivorship rights

Real estate or accounts titled as joint tenants with right of survivorship, or — for married couples — as tenancy by the entirety, pass automatically to the surviving co-owner the moment of death. No court, no will, no waiting. Tenancy by the entirety is especially powerful in Florida because it also shields the property from the creditors of just one spouse.

One caution: property held as tenants in common does not include survivorship. A one-half interest owned as tenants in common is a probate asset and goes through the estate.

2. Beneficiary and POD/TOD designations

These contract-based designations override the will every time:

• Life insurance proceeds payable to a living named beneficiary.
• IRAs, 401(k)s, 403(b)s, and annuities with a surviving designated beneficiary.
• Bank accounts with a payable-on-death payee.
• Brokerage and investment accounts with a transfer-on-death registration under Florida’s Uniform Transfer-on-Death Security Registration Act (Sections 711.50–711.512).

I tell every client the same thing: your beneficiary forms are your real estate plan for these assets. A will leaving “everything to my children” cannot redirect a 401(k) that still names an ex-spouse. The form wins.

3. Trust assets

Property properly titled in the name of a revocable living trust is not a probate asset. It’s controlled by the trust’s terms and distributed by the successor trustee under Florida’s Trust Code (Chapter 736), with no court involvement. The catch — and it’s a big one — is funding. A trust only avoids probate for the assets actually retitled into it. I see unfunded trusts constantly: a beautifully drafted document and a house still sitting in the decedent’s individual name, which means probate anyway.

4. The Florida homestead

The homestead deserves its own paragraph because it doesn’t fit neatly into either column. Under Article X, Section 4 of the Florida Constitution, a protected homestead passing to a surviving spouse or heirs is generally not subject to the claims of most creditors and isn’t a typical probate asset for distribution purposes. That said, you often still need a court order — typically a petition to determine homestead status — to clear title. So the homestead “skips” creditor exposure but frequently still requires a brief trip through the probate court to confirm its character. Many a clean transfer has been delayed because no one filed that petition.

5. Lady Bird deeds

An enhanced life estate deed, known in Florida as a “Lady Bird” deed, lets an owner keep full control during life — including the right to sell or mortgage — while naming a remainder beneficiary who takes title automatically at death. Properly executed, it moves real estate out of probate without surrendering control. It’s one of my favorite tools for the right client.

The gray areas where families get burned

The clean theory above runs into messy reality more often than you’d think. A few recurring problems:

• The “estate” beneficiary. When a life insurance policy or retirement account names the estate, or all named beneficiaries are deceased, the proceeds fall back into probate — defeating the entire point of the designation.
• Stale designations. Divorce, remarriage, the death of a named beneficiary, or a new child can quietly turn a non-probate plan into a probate problem.
• Partially funded trusts. As noted, an asset left out of the trust still needs probate. A pour-over will helps, but it works through probate, not around it.
• Disputes over which column an asset belongs in. Was a joint account a true survivorship account or merely added for convenience? Was a deed validly delivered? These questions turn into litigation fast.

That last category is where things often escalate from administration into outright conflict — particularly in families that have already been through a contested guardianship before the death, where suspicion and old grievances are baked in. When the characterization of assets is challenged, you’ve crossed from routine probate into estate litigation. Morgan Legal’s discussion of walks through how those fights typically unfold, and the dynamics translate closely to Florida courts.

A practical way to inventory an estate

If you’re trying to figure out whether you even need to open probate, work asset by asset and ask three questions in order:

1. Is there a surviving co-owner with survivorship rights? If yes, it passes automatically — done.
2. Is there a valid, living beneficiary or POD/TOD designation? If yes, it passes by contract — done.
3. Is the asset titled in a trust? If yes, the trustee handles it outside court.

Anything that survives all three questions — solely owned, no designation, not in trust — is a probate asset. Tally those up. If the total (excluding exempt homestead value) is $75,000 or less, summary administration may be available. If it’s more, or the matter is contested, you’re likely looking at formal administration.

For estates that touch Florida real property specifically, our Florida probate guide covers the homestead petition and ancillary administration in more detail, and if your planning needs a fresh look, start with our wills and estate planning overview before designations drift out of date.

Why this matters before, not after

The reason careful estate planning works is that it intentionally drains the probate column. Every asset you give a survivorship title, a current beneficiary, or a funded trust is one less asset the court has to touch — and one less opportunity for delay, cost, or a fight among heirs. The families who sail through estate settlement aren’t lucky; they planned the title and designation on each asset on purpose.

If you’re administering an estate now and aren’t sure which assets require probate — or you want to structure your own plan so your heirs avoid it — a short conversation can save months. The Morgan Legal team handles both Florida and New York matters; you can review our Florida probate practice or reach out through our contact page to talk through your specific assets.

Frequently Asked Questions

Does a will keep my assets out of probate in Florida?

No. A will is actually the instrument that tells the probate court how to distribute your probate assets, so a will-based plan still goes through probate. Assets avoid probate only through survivorship titling, valid beneficiary or POD/TOD designations, or being properly funded into a trust.

Is the Florida homestead a probate asset?

Not in the usual sense. A protected homestead passing to a surviving spouse or heirs is generally shielded from most creditors and is not distributed like ordinary probate property. However, you often still need a court order determining homestead status to clear title, so it frequently requires a limited probate proceeding.

What is the asset value cutoff for summary administration in Florida?

Summary administration is available when the value of the probate estate (excluding the exempt homestead value) is $75,000 or less, under Section 735.201 of the Florida Statutes. It is also available regardless of value when the decedent has been deceased for more than two years.

What happens if a life insurance policy names the estate as beneficiary?

The proceeds become a probate asset and are administered through the estate, subject to creditor claims and the will or intestacy rules. This also happens when all named beneficiaries have died and no contingent beneficiary is listed, which is why keeping designations current is so important.

Do retirement accounts and IRAs go through probate in Florida?

Generally no, as long as a living designated beneficiary is named. IRAs, 401(k)s, and annuities pass directly to that beneficiary outside probate. They only fall into probate if the beneficiary is the estate, or if every named beneficiary has predeceased with no contingent named.